Dollar Tree Stores, Inc. and Arch Insurance Company v. Elizabeth A. Wilson , 64 Va. App. 103 ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Huff and Senior Judge Annunziata
PUBLISHED
Argued at Lexington, Virginia
DOLLAR TREE STORES, INC. AND
ARCH INSURANCE COMPANY
OPINION BY
v. Record No. 0474-14-3 JUDGE GLEN A. HUFF
DECEMBER 2, 2014
ELIZABETH A. WILSON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Matthew J. Griffin (Emily O. Sealy; Midkiff, Muncie & Ross,
P.C., on brief), for appellants.
Elizabeth A. Wilson, pro se.
Dollar Tree Stores, Inc. (“employer”) appeals a decision of the Virginia Workers’
Compensation Commission (“commission”) finding that Elizabeth A. Wilson (“claimant”)
suffered a compensable injury. On appeal, employer asserts that the commission “erred in
finding that the claimant sustained a compensable injury by accident arising out of her
employment, given that the evidence did not prove that the injury was caused by an actual risk of
the employment or an actual risk inherent and unique to the employment.” For the following
reasons, this Court affirms the commission’s ruling.
I. BACKGROUND
On appeals from the commission, “we review the evidence in the light most favorable to
the prevailing party.” R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d
788, 788 (1990). If supported by credible evidence, the commission’s factual findings are
“binding on appeal,” Tomes v. James City Fire, 39 Va. App. 424, 430, 573 S.E.2d 312, 315
(2002), “even though there is evidence in the record to support a contrary finding,” Morris v.
Badger Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986). When
“determining whether credible evidence exists,” we cannot “retry the facts, reweigh the
preponderance of the evidence, or make [our] own determination of the credibility of the
witnesses.” Wagner Enters. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). In
addition, the commission’s “conclusions upon conflicting inferences, legitimately drawn from
proven facts, are equally binding on appeal.” Watkins v. Halco Eng’g, Inc., 225 Va. 97, 101,
300 S.E.2d 761, 763 (1983). So viewed, the evidence is as follows.
On October 21, 2011, claimant was employed as the manager of the Dollar Tree Store in
Altavista, Virginia. The store’s layout, at that time, consisted of aisles, “gondolas,” and “end
caps” for product displays and sale to the general public. The store also had four cash registers.
At the front of one of the registers was a water display stack (“water stack”), which consisted of
cases of one-gallon water containers that were stacked three cases deep and three cases wide.
As store manager, claimant was responsible for “closing out” the store’s registers at the
end of each day. Around closing time on the day of the incident, claimant “closed out” a register
that Robin East (“East”), a store employee, had been using. Claimant handed East the register
drawer, and East started walking with the drawer towards claimant’s office. Claimant turned to
follow East, but “caught [her] foot on [the water] stack” as she was going “around the end of the
. . . register.” Claimant “grabbed the end of the register” to keep herself from falling, but
testified that she felt “immediate pain.” Additionally, claimant testified that she did not have to
“turn sideways,” “back up,” or “walk unusually” to get past the water stack.
After tripping over the water stack, claimant did not initially realize how “severe . . . it
was.” Consequently, she finished closing down the store for the day. A week later, however,
claimant sought medical attention from Dr. Robert Sydnor (“Sydnor”). An MRI revealed “a
nondisplaced stress fracture at the left femoral neck and low grade stress reaction of the right
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femoral neck.” Claimant underwent surgery to repair the fracture, and Sydnor released her to
return to light-duty work on December 21, 2011. Claimant resumed earning her usual salary on
December 25, 2011, although she did not return to work until January 3, 2012. Sydnor released
claimant of all restrictions on March 13, 2012.
Claimant filed a claim with the commission on February 9, 2012 seeking temporary total
disability benefits from October 22, 2011 through December 28, 2011 and temporary partial
disability benefits from December 29, 2011 through March 12, 2012. On August 9, 2012, the
deputy commissioner denied the claim for benefits, holding that claimant failed to meet her
burden of establishing that her injury arose out of her employment. Claimant appealed this
decision to the full commission, which reversed the deputy commissioner, holding that the water
stack constituted a “workplace hazard,” and remanded the case for consideration of remaining
issues. On remand, the deputy commissioner held that claimant suffered a compensable injury
by accident and awarded claimant various periods of temporary total and temporary partial
disability benefits. Employer appealed this decision to the full commission, which affirmed the
deputy commissioner’s finding of a compensable injury by accident, but modified the
compensation award. This appeal followed.
II. ANALYSIS
On appeal, employer contends that the commission erred by finding that claimant
suffered a compensable injury. Specifically, employer argues there was no evidence showing
that claimant’s injury arose out of her employment.
“Whether an injury arises out of . . . employment involves a mixed question of law and
fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550
S.E.2d 336, 338 (2001) (citing Norfolk Cnty. Hosp. v. Smith, 33 Va. App. 1, 4, 531 S.E.2d 576,
578 (2000)); see also Dublin Garment Co. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638, 638
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(1986). On review to this Court, “‘[d]ecisions of the commission as to questions of fact, if
supported by credible evidence, are conclusive and binding on this Court.’” VFP, Inc. v.
Shepherd, 39 Va. App. 289, 292, 572 S.E.2d 510, 511 (2002) (quoting WLR Foods v. Cardosa,
26 Va. App. 220, 230, 494 S.E.2d 147, 152 (1997)).
Under Virginia’s workers’ compensation statutes, “‘injury’ means only injury by accident
arising out of and in the course of the employment.” Code § 65.2-101.
Thus, for an injury to be compensable under the Workers’
Compensation Act, the claimant must prove by a preponderance of
the evidence three elements: (1) that the injury was caused by an
accident; (2) that the injury was sustained in the course of the
employment; and (3) that the injury arose out of the employment.
Southland Corp. v. Parson, 1 Va. App. 281, 283-84, 338 S.E.2d 162, 163 (1985). The “concepts
‘arising out of’ and ‘in the course of’ employment are not synonymous and both conditions must
be proved before compensation will be awarded.”1 PYA/Monarch & Reliance Ins. Co. v. Harris,
22 Va. App. 215, 221, 468 S.E.2d 688, 689 (1996) (quoting Marketing Profiles, Inc. v. Hill, 17
Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc)).
Virginia adheres to the actual risk test to determine whether an injury arises out of the
employment. Cnty. of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75-76 (1989).
“The phrase arising ‘out of’ refers to the origin or cause of the injury.” Id. at 183, 376 S.E.2d at
74. Under the actual risk test, an injury arises out of the employment when “‘there is apparent to
the rational mind upon consideration of all the circumstances, a causal connection between the
conditions under which the work is required to be performed and the resulting injury.’”
Marketing Profiles, 17 Va. App. at 434, 437 S.E.2d at 729 (quoting Bradshaw v. Aronovitch, 170
Va. 329, 335, 196 S.E. 684, 686 (1938)). Conversely,
1
It is not contested in the present case that claimant’s injury occurred “in the course of”
her employment.
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[a]n injury does not arise out of the employment when it “cannot
fairly be traced to the employment as a contributing proximate
cause and . . . comes from a hazard to which the workmen would
have been equally exposed apart from the employment. The
causative danger must be peculiar to the work and not common to
the neighborhood.”
Vint v. Alleghany Reg’l Hosp., 32 Va. App. 60, 63-64, 526 S.E.2d 295, 297 (2000) (quoting
Bradshaw, 170 Va. at 335, 196 S.E. at 686).
In the present case, this Court holds that the commission did not err by concluding that
claimant’s injury arose out of her employment. Specifically, claimant’s employment required
her to maneuver around the water stack after closing out the register for the day. As she was
doing so, her left foot caught the corner of the water stack, resulting in the injury. The
commission found, as a matter of fact, that the water stack was a hazard peculiar to the
workplace when it identified the stack as a “workplace hazard.” On appeal, this Court cannot
disturb this factual determination as it is supported by credible evidence. See Diaz v. Wilderness
Resort Ass’n, 56 Va. App. 104, 114, 691 S.E.2d 517, 522 (2010) (“[W]e must defer to the
commission’s findings of fact if supported by credible evidence in the record.”).
The present case is distinguishable from this Court’s unpublished opinion in Jennings v.
Richmond Pub. Schs., No. 2497-11-2, 2012 Va. App. LEXIS 212 (Va. Ct. App. June 26, 2012),
upon which employer relies. In Jennings, the claimant tripped over the threshold of a doorway,
resulting in injury. The commission, sitting as the trier of fact, found “no evidence that the
threshold was unusual” or “defective in any way.” Id. at *2. As such, it did not constitute a
hazard peculiar to the claimant’s employment. By contrast, in the present case, the commission
was entitled to conclude that the water stack, around which claimant was required to maneuver
as a part of her employment, was peculiar to claimant’s workplace and not “common to the
neighborhood.” Bradshaw, 170 Va. at 335, 196 S.E. at 686.
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III. CONCLUSION
For the foregoing reasons, this Court affirms the commission’s ruling that claimant’s
injury arose out of her employment.
Affirmed.
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